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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
Infinity Broadcasting ) File Nos. EB-00-IH-0412; EB-
Operations, Inc. ) 01-IH-0027
) NAL/Acct. No. 200032080012
Licensee of Station WNEW(FM), ) FRN 0003-4760-74
New York, New York ) Facility ID # 25442
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 6, 2002 Released: June 7, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Infinity Broadcasting Operations, Inc.,
(``Infinity''), licensee of Station WNEW(FM), New York, New York,
apparently violated 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, by
willfully and repeatedly broadcasting indecent language on three
occasions. Based upon our review of the facts and circumstances
in this case, we conclude that Infinity is apparently liable for
a forfeiture in the amount of twenty-one thousand dollars
($21,000).
II. BACKGROUND
2. The Commission received two complaints alleging that
WNEW(FM) broadcast indecent material during the ``Opie and
Anthony Show,'' a show that is regularly scheduled to air on
weekdays from 3 p.m. to 7 p.m. The first complaint cited
material that aired on November 15, 2000 and November 16, 2000.
The complainant provided tapes with various portions of the show.
A song entitled ``Teen Week'' was aired during one segment of the
November 15, 2000 ``Opie and Anthony Show.'' ``Teen Week''
consisted of lines of dialogue with a musical background. A
portion of the song follows:
Young girl's voice-- YV
Dad-- D
***
YV: Daddy, can I come too? Can I come too? Daddy, it
won't fit in my mouth.
D: Just keep sucking
YV: I almost choked on your creamy head
I almost choked on your creamy head
Mommy, mommy doesn't have to know
D: Who's daddy's little girl.
YV: I'm your little whore.
D: Who's daddy's little girl.
YV: I'm your little whore/
Daddy, show me your monkey...
3. In a segment of the ``Opie and Anthony Show'' broadcast
on November 16, 2000, the show hosts asked a seventeen-year-old
girl to remove her panties and rub the telephone on her pubic
hair. The show hosts called the game, ``Teen Guess What's In My
Pants?'' The show hosts gave detailed instructions regarding how
to rub the telephone across the girl's pubic area. After each
direction from the host, the station broadcast the sound of the
telephone rubbing across the girl's pubic area.
4. The second complaint includes excerpts from a song
allegedly broadcast on the January 8, 2001 ``Opie and Anthony
Show.'' The excerpts were lyrics sung by a man who is ``horny
for little girls,'' liked girls between the ages of two and
three, liked the girls' ``round butts'' and ``liked to ram
them.'' After reviewing these complaints, we issued letters of
inquiry to the licensee. The letter of inquiry concerning the
November 15, 2000 and November 16, 2000 ``Opie and Anthony Show''
included a transcript of portions of the tapes submitted by the
complainant. See Attachment.1
5. Infinity submitted responses to the letters of inquiry,
and, with respect to the November 2000 broadcasts, states that
WNEW (FM) does not have its own recording of the allegedly
indecent broadcasts and thus has no knowledge if the actual
broadcast was materially different from the transcript.2
Infinity argues that even if the transcript accurately reflects
material broadcast on the ``Opie and Anthony Show,'' the material
is not actionably indecent.
6. With respect to the January 8, 2001 broadcast, Infinity
acknowledges that ``sometime during the early part of 2001, it
broadcast material on the `Opie and Anthony Show' relating to the
general subject matter cited in the complaint.''3 However,
Infinity states that WNEW(FM) does not have a recording of the
broadcast, and therefore cannot determine whether the specific
material described in the complaint represents an accurate
description of what was broadcast. Infinity argues that because
it is not possible to establish what was actually broadcast, this
complaint must be dismissed.
III. DISCUSSION
7. It is a violation of federal law to broadcast obscene
or indecent programming. Specifically, Title 18 of the United
States Code, Section 1464 (18 U.S.C. § 1464), prohibits the
utterance of ``any obscene, indecent or profane language by means
of radio communication.'' Congress has given the Federal
Communications Commission the responsibility for administratively
enforcing 18 U.S.C. § 1464. In doing so, the Commission may,
among other things, impose a monetary forfeiture, pursuant to
Section 503(b)(1) of the Communications Act (the ``Act''), 47
U.S.C. § 503(b)(1), for broadcast of indecent material in
violation of 18 U.S.C. § 1464. Federal courts have upheld
Congress's authority to regulate obscene speech and, to a limited
extent, indecent speech. Specifically, the U.S. Supreme Court
has determined that obscene speech is not entitled to First
Amendment protection. Accordingly, Congress may prohibit the
broadcast of obscene speech at any time.4 In contrast, federal
courts have held that indecent speech is protected by the First
Amendment.5 Nonetheless, the federal courts consistently have
upheld Congress's authority to regulate the broadcast of indecent
speech, as well as the Commission's interpretation and
implementation of the statute.6 However, the First Amendment is
a critical constitutional limitation that demands we proceed
cautiously and with appropriate restraint.7 Consistent with a
subsequent statute and case law,8 under the Commission's rules,
no radio or television licensee shall broadcast obscene material
at any time, or broadcast indecent material during the period 6
a.m. through 10 p.m. See 47 C.F.R. § 73.3999.
8. In enforcing its indecency rule, the Commission has
defined indecent speech as language that first, in context,
depicts or describes sexual organs or activities. Second, the
broadcast must be ``patently offensive as measured by
contemporary community standards for the broadcast medium.''
Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705
(1987) (subsequent history omitted) (citing Pacifica Foundation,
56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)). This definition has been
specifically upheld by the federal courts.9 The Commission's
authority to restrict the broadcast of indecent material extends
to times when there is a reasonable risk that children may be in
the audience. ACT I, supra. As noted above, current law holds
that such times begin at 6 a.m. and conclude at 10 p.m.10
9. The Commission's indecency enforcement is based on
complaints from the public. Once a complaint is before the
Commission, we evaluate the facts of the particular case and
apply the standards developed through Commission case law and
upheld by the courts. See Industry Guidance on the Commission's
Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency (`` Indecency Policy Statement'')
16 FCC Rcd 7999 at 8015, ¶ 24 (2001). ``Given the sensitive
nature of these cases and the critical role of context in an
indecency determination, it is important that the Commission be
afforded as full a record as possible to evaluate allegations of
indecent programming.'' Id. In evaluating the record to
determine whether the complained of material is patently
offensive, three factors are particularly relevant: (1) the
explicitness or graphic nature of the description; (2) whether
the material dwells on or repeats at length descriptions of
sexual or excretory organs or activities; and (3) whether the
material appears to pander or is used to titillate or shock. See
Indecency Policy Statement, supra, 16 FCC Rcd at 8003 ¶ 10.
10. The complained of material broadcast on the ``Opie and
Anthony Show,'' in context, refers to sexual activity. Thus, this
material warrants scrutiny in order to determine whether it is
patently offensive. We find that two of the excerpts broadcast on
November 15 and 16, 2000 and the material broadcast on January 8,
2001 appear to be patently offensive.
11. The inquiry under the first key factor relevant to a
determination of patent offensiveness is whether the sexual
references are graphic or explicit. Infinity argues that the
``Teen Week'' song broadcast on November 15, 2000 is a mix of
random lines of dialogue from the ``Opie and Anthony Show,''
popular culture, politics and other sources, consisting of
oblique sexual references which would not be inescapably
understood by a child. Although the mix broadcast on WNEW (FM)
was constructed of lines of dialogue that may not have originally
described sexual activities, the mix as aired inescapably refers
to oral sex between a daughter and her father and other sexual
activities. The Commission has found similar language to be
indecent when used in a context where the sexual import is
inescapable. See, e.g., The Rusk Corporation (KLOL(FM)), 8 FCC
Rcd 3228 (1993).11
12. Moreover, the segment ``Teen Guess What's In My
Pants?'' broadcast on November 16, 2000 explicitly described and
broadcast the sound of a telephone rubbing over a seventeen-year-
old girl's pubic area. A broadcast of the sound that a telephone
makes when rubbed across a teenager's pubic area epitomizes the
type of explicit and graphic depiction of sexual organs and
activities contemplated by the Commission's definition. The
Commission has found similar programming indecent. See, e.g.,
Citicasters, Co. (WXTB (FM)), 13 FCC Rcd 15381 (MMB
1998)(forfeiture paid); see also Indecency Policy Statement,
supra, 16 FCC Rcd at 8010-11 ¶ 20. In addition, with respect to
the analysis of the January 8, 2001 broadcast under the first key
factor, we find that the sexual references in the song, which
refer to children, are explicit and graphic especially given the
reference to ``being horny for little girls.''
13. With respect to the second factor, the material
broadcast on November 15, 2000 and November 16, 2000 dwelled on
sexual organs or activities. Under the third factor, we find
that the programming on broadcast on both November 15, 2000 and
November 16, 2000 was used to pander and titillate.
14. Moreover, under the third factor, the sexual references
in the song broadcast on January 8, 2001 appear to be used to
shock, and are similar to other patently offensive material
involving graphic references to sexual activity with children
that have been found to be indecent.12 Under these
circumstances, we need not find that the sexual references
broadcast on January 8, 2001 were repeated at length, which is
relevant under the second factor, in order to find that the
material is patently offensive. As noted in the Indecency Policy
Statement, broadcasting references to sexual activities with
children, even if relatively fleeting, may be found indecent
where, as here, other factors contribute to a finding of patent
offensiveness.13
15. Infinity argues that the ``Opie and Anthony Show'' when
judged by contemporary community standards is not offensive to
the average listener.14 In support of this argument, Infinity
recites the high ratings the ``Opie and Anthony Show'' has among
men 25-44. We are not convinced that because a segment of the
population tunes in to the ``Opie and Anthony Show,'' that the
material aired was not indecent. We find that the programming
aired is patently offensive to the average listener as measured
by contemporary community standards.15 Infinity does not claim
that any of the complained of material was broadcast outside the
6 a.m. to 10 p.m. time frame relevant to an indecency
determination. Thus, there was a reasonable risk that children
may have been in the audience at the time that the material at
issue was broadcast on November 15, 2000, November 16, 2000 and
January 8, 2001 and, therefore, the material broadcast on these
three occasions is legally actionable. By broadcasting this
material on three occasions, WNEW(FM) apparently violated the
prohibitions in the Act and the Commission's rules against
broadcast indecency.
16. Finally, as noted above, Infinity argues that the
January 8, 2001 complaint should be dismissed because the
complainant did not submit a tape, transcript or significant
excerpts of the allegedly indecent material and it is not
otherwise possible to establish what was actually broadcast by
using, for example, a commercial recording. Infinity also argues
that proceeding with the complaint under these circumstances
deprives it of the right to due process. Specifically, Infinity
contends that we cannot rely on the untested recollection of the
complainant without first giving it the opportunity to cross-
examine the complainant in order to explore the complainant's
character, demeanor, memory and motivation.
17. We disagree, finding that the excerpt is significant
enough to be consistent with our practice for evaluating
indecency complaints.16 In any event, ``our practice that
complainants provide a tape, transcript or significant excerpt is
not a requirement, but a general practice used by the Commission
to assist in the evaluation of indecency complaints.'' Infinity
Broadcasting Corporation of Los Angeles (KROQ-FM), 16 FCC Rcd
6867, 6870 ¶ 11 (EB 2001), aff'd FCC 02-141 (rel. May 24, 2002).
We base our decision to investigate on whether the complainant
provided sufficient information for us to determine that the
station may have broadcast indecent material contrary to the
Commission's rule. We base our decision to propose a forfeiture
on a preliminary determination that the material aired and was
actionably indecent. See Indecency Policy Statement, supra, 16
FCC Rcd at 8016. As explained above, the complainant provided the
date of the broadcast, the call sign of the station, and
sufficient detail and context about what was broadcast to
determine that Infinity apparently broadcast prohibited indecent
material.17 Infinity does not deny that the material at issue
was broadcast or that the ``Opie and Anthony Show'' aired during
the time period between 6 a.m. and 10 p.m. We therefore reject
Infinity's contention that the record is inadequate. For the
same reasons, we reject its contention that our action is
contrary to due process. Infinity will be afforded the
opportunity to respond to this NAL, a step that is required by
statute. 47 U.S.C. § 503(b). See also id. Should Infinity choose
not to respond to the NAL and not to pay the proposed forfeiture,
47 U.S.C. § 504 protects its rights by providing that a
forfeiture imposed without an evidentiary hearing cannot be used
to the prejudice of that entity unless a court of competent
jurisdiction has issued a final order after a trial de novo
requiring payment of the forfeiture. See Infinity Broadcasting
Corporation of Los Angeles (KROQ-FM), supra, 16 FCC Rcd at 6869.
18. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
section 1.80(a) of the Commission's rules, 47 C.F.R § 1.80, both
state that any person who willfully or repeatedly fails to comply
with the provisions of the Act or the rules shall be liable for a
forfeiture penalty. For purposes of section 503(b) of the Act,
the term ``willful'' means that the violator knew it was taking
the action in question, irrespective of any intent to violate the
Commission's rules, and ``repeatedly'' means more than once.18
Based on the material before us, it appears that Infinity
willfully violated 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules, by airing indecent programming on WNEW(FM) on
November 15, 2000, November 16, 2000 and January 8, 2001.
19. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.19 The Forfeiture Policy Statement
also specifies that the Commission shall adjust a forfeiture
based upon consideration of the factors enumerated in section
503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D), such as ``the
nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters
as justice may require.''20 After reviewing all of the
circumstances, we believe a $21,000 forfeiture is appropriate in
this case for the apparent broadcast of indecent material on
three occasions.
IV. ORDERING CLAUSES
20. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b)
of the Communications Act of 1934, as amended, and Sections
0.111, 0.311, and 1.80 of the Commission's rules,21 that Infinity
Broadcasting Operations Inc. is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of twenty-one thousand
dollars ($21,000) for willfully and repeatedly violating 18
U.S.C. § 1464 and section 73.3999 of the Commission's rules.
21. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, Infinity SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
22. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment MUST INCLUDE
the FCC Registration Number (FRN) referenced above and also
should note the NAL/Acct. No. referenced above.
23. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the NAL/Acct.
No. referenced above.
24. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the respondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the respondent's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
25. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.22
26. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to Stephen
A. Hildebrandt, Vice-President, Infinity Broadcasting Operations,
Inc., 600 New Hampshire Ave., N.W., Suite 1200, Washington, D.C.,
20037 and to Infinity's
counsel, Elizabeth N. Alexander, Esq., Leventhal, Senter & Lerman
P.L.L.C., 2000 K Street, N.W., Suite 600, Washington, D.C.
20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
2. ATTACHMENT
3.
EB-00-IH-0412
Opie and Anthony
WNEW 102.7FM
November 15, 2000 between 2:00 P.M. and 7:00 P.M. 23
``Teen Week'' Drew Boogy
Young girls voice - YV
Dad - D
Guy: Nude Teens
***Moans
YV: Daddy, can I come too? Can I come too? Daddy, it won't fit
in my mouth.
D: Just keep sucking
YV: I almost choked on your creamy head
I almost choked on your creamy head
Mommy, mommy doesn't have to know
D: Who's daddy's little girl.
YV: I'm your little whore.
D: Who's daddy's girl¾
YV: I'm your little whore/
Daddy, show me your monkey/
Put a little nigga' in it
Put a little nigga' in it
Stick it in my mouth, what's that in your pants?
D: I can't believe it. ***squirting sounds
YV: That didn't taste like beer.
D: Shut up, dummy.
________________________________________________________________-
_____________
November 16, 2000 between 2:30 P.M and 3:30 P.M., 6:00 P.M. -7
P.M.24
Teen Guess What's In My Pants, w/ 17-year-old Megan
M: What do I do, I just put the phone down there
***laughter
DJ's: Okay, hold on for just a second.
M: Okay.
DJ's: I think your boyfriend needs to leave the room¾and your
girlfriend.
M: I'm out of the room. They're in my room. I'm out in the
hallway.
DJ's: Now what you do, is take off your little pants and pull
down your little panties.
M: Okay.
DJ's: Now you take the phone, and you know what to do with
it, you've heard this before right?
M: Yeah.
DJ's: We're looking for the first motion of the phone to be
an up and down motion.
M: Okay.
DJ's: We didn't do the theme song.
F the theme song.. someone's going to run through the door
in the middle of the
theme song , and we are never going to get to this.
***Sings song quickly
M: Okay, you ready?
DJ's: Up and down motion¾now, after you do all the motions,
Opie and I , and the other people in the studio, are going
to try to guess what kind of hairstyle you have. Don't
answer or acknowledge anything we say until we ask you what
hairstyle you have.
M: Okay.
DJ's: Okay, start with an up and down motion.
M: Okay. Hold on.
***Rubs phone up and down on her crotch.
DJ's: Lucky phone.
***Laughter
DJ's: Now that was up and down.
M: Yup.
DJ's: Can we have a couple more than that? Just do it like
five or six times up and down.
M: Okay.
***Rubs phone up and down on her crotch.
M: Okay.
DJ's: Now a side to side motion.
***Rubs phone side to side on her crotch.
DJ's: Here that little change in sound Opie, you know what
that is, don't you?
Yes.
Now a circular motion.
M: Okay.
***Rubs phone circular on her crotch.
***Opie and Anthony and crew continue to guess the type of pubic
haircut Megan has.
_________________________
1 Two excerpts from the transcript that are the basis for
this Notice of Apparent Liability with respect to the November
15, 2000 and November 16, 2000 broadcasts are attached.
2 Infinity does dispute that the ``Unnamed Song''
transcribed contained the word ``fuck.'' However, this Notice
of Apparent Liability does not base its finding on that segment.
3 Infinity's Response to the Letter of Inquiry for the
January 8, 2000 complaint, at 2.
4 See Sable Communications of California, Inc. v. FCC, 492
U.S. 115 (1989); Miller v. California, 413 U.S. 15 (1973),
rehearing denied, 414 U.S. 881 (1973).
5 Sable Communications of California, Inc. v. FCC, supra
note 4, 492 U.S. at 126.
6 FCC v. Pacifica Foundation, 438 U.S. 726 (1978). See
also Action for Children's Television v. FCC, 852 F.2d 1332,
1339 (D.C. Cir. 1988) (``ACT I''); Action for Children's
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991), cert
denied, 112 S.Ct. 1282 (1992) (``ACT II''); Action for
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert
denied, 116 S.Ct. 701 (1996) (``ACT III'').
7 ACT I, supra note 6, 852 F.2d at 1344 (``Broadcast
material that is indecent but not obscene is protected by the
first amendment; the FCC may regulate such material only with
due respect for the high value our Constitution places on
freedom and choice in what people say and hear.''). See also
United States v. Playboy Entertainment Group, Inc., 529 U.S.
803, 813-15 (2000). We note that Infinity makes a general
argument that our definition of indecency is unconstitutional,
citing Reno v. ACLU, 521 U.S. 844 (1997). However, the
Commission previously has rejected constitutional challenges to
our broadcast indecency standards based on Reno v. ACLU, a case
which invalidated an indecency standard for the Internet. See,
e.g., WQAM License Limited Partnership, 15 FCC Rcd 2518
(2000)(noting that the Court indicated that broadcast indecency
regulations were justified based on significant differences
between the Internet and the broadcast medium and between the
standard in the statute at issue and the Commission's broadcast
indecency standard).
8 Public Telecommunications Act of 1992, Pub. L. No. 356,
102nd Cong., 2nd Sess. (1992); ACT III, supra note 6.
9 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra note 6, 438 U.S. at 732. In
addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra note
6, 852 F.2d at 1339; ACT II, supra note 6, 932 F.2d at 1508; ACT
III, supra note 6, 58 F.3d at 657.
10 ACT III, supra note 6.
11 See also, KGB, Inc., (KGB-FM), 7 FCC Rcd 3207 (1992),
forfeiture reduced 13 FCC Rcd 16396 (1998)(``Candy Wrapper''
song, which includes lyrics such as ``my Butterfinger went up
her tight little Kit Kat''). See also, Great American
Television and Radio Company, Inc. (WFBQ(FM)/WNDE(AM)), 6 FCC
Rcd 3692, 3693 (MMB 1990); WIOD, Inc. (WIOD(AM)), 6 FCC Rcd 3704
(MMB 1989).
12 Citicasters Co.(KSJO(FM)), 15 FCC Rcd 19091 (EB
2000)(``joke'' that includes patently offensive references to
incest and sex with children); Tempe Radio, Inc (KUPD-FM), 12
FCC Rcd 21828 (MMB 1997)(patently offensive language referring
to sexual activity with a child); EZ New Orleans, Inc
(WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997)(patently offensive
references to incest and sexual activity with an infant).
13 Indecency Policy Statement, 16 FCC Rcd at 8009.
14 Infinity makes this argument in response to our inquiry
concerning the November 15, 2000 broadcast and the November 16,
2000 broadcast.
15 See, e.g., WIOD, Inc., supra n.11, at 6 FCC Rcd 3705
(ratings indicating the popularity of broadcast material do not
prevent the Commission from ascertaining that such material is
patently offensive using contemporary community standards that
reference the average listener).
16 Indecency Policy Statement, 16 FCC Rcd at 8015.
17 See Infinity Broadcasting Corporation of Los Angeles
(KROQ-FM), supra, 16 FCC Rcd at 6868 (accepting a complainant's
uncontradicted statement that she heard certain words as
probative evidence that a particular version of a song was
played). Moreover, the circumstances here are unlike Mr. Steve
Bridges, 9 FCC Rcd 1681 (MMB 1991), on which Infinity relies.
In that case, the complainant provided a transcript of allegedly
indecent material broadcast during a brief, live, unscripted
comment by a caller. The licensee disputed that the entire text
of the transcribed material had been broadcast, which was not
contradicted.
18 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
19 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied 15 FCC Rcd 303 (1999) (Forfeiture Policy Statement); 47
C.F.R. § 1.80(b).
20 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
21 47 C.F.R. §§ 0.111, 0.311 and 1.80.
22 See 47 C.F.R. § 1.1914.
23 Although the complainant acknowledges that the ``Opie
and Anthony Show'' airs between 3 p.m. and 7 p.m., the tape
containing this excerpt references an approximate start time of
2 p.m.
24 The tape containing this excerpt references an
approximate start time of 2:30 p.m.